King v. Columbian Carbon Co.

• Decision Date: 18 January 1946
• Docket Number: No. 11417.,11417.
• Citation: 152 F.2d 636
• Parties: KING et al. v. COLUMBIAN CARBON CO.
• Court: U.S. Court of Appeals — Fifth Circuit

152 F.2d 636 (1945)

KING et al. v. COLUMBIAN CARBON CO.

No. 11417.

Circuit Court of Appeals, Fifth Circuit.

December 19, 1945.

Rehearing Denied January 18, 1946.

COPYRIGHT MATERIAL OMITTED

Ewing Werlein, of Houston, Tex., for appellants.

Austin Y. Bryan, Jr., and Ira P. Jones, Jr., both of Houston, Tex., for appellee.

Before SIBLEY, McCORD, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

The lower Court dismissed the complaint wherein the Plaintiffs had alleged: That they were the owners of a tract of land a short distance from the carbon black manufacturing plant of the Defendant, in Harris County, Texas; that such plant was constructed at great expense and is engaged in the manufacture of a commodity necessary for the prosecution of the war (that was then being waged), as well as for civilian use; that this plant continuously emits large quantities of soot, carbon black, a greasy distillate, and other substances, which fall upon and damage the Plaintiffs' land; that the plant cannot be operated for any other purpose nor in any other manner; that the operation of the plant promotes the public welfare, but at the same time damages the land of these Plaintiffs; that the officers and agents of the Defendant knew at the time of the construction of its plant that it would discharge said substances upon, and seriously damage, the Plaintiffs' land, which for many years theretofore had been, and is still being, used for residential and farming purposes and the grazing of livestock; that the plant of the Defendant is in a locality that is not used generally for industrial purposes; that the operation of such plant is voluntary and intentional and constitutes a permanent and substantial invasion of, and interference with, the use and enjoyment of Plaintiffs' land; that although the plant constitutes a nuisance which is permanent in its nature, nevertheless, it is lawful and serves a useful purpose and, therefore, can neither be abated nor enjoined, wherefore Plaintiffs' remedy is restricted solely to the recovery of damages.

Appellants frankly concede that the business in question is a lawful enterprise engaged in the utilization of a natural product of the community in the manufacture of a useful and necessary commodity. Due to these facts and the further fact that it is not being negligently operated, they admit that an injunction will not lie to compel a cessation of the operation of the plant and an elimination of the consequent damages therefrom.

The lower Court thought that in the absence of an allegation of the negligent operation, or of the negligent construction, of the plant there could be no recovery and, for this reason, the complaint ought to be dismissed.

Counsel for the respective parties are in agreement that: the operation of the Defendant is lawful, fills a necessary public need, is not a nuisance per se, is without negligence, and that there is no known way for the Defendant to carry on its business without damaging the land of Appellants.

Before applying the law to the particular facts before us it might be helpful to consider a few well known general principles dealing with the subjects of nuisances and negligence and their relation to each other:

"A nuisance, broadly stated, is anything that works an injury, harm, or prejudice to an individual or the public. According to definitions formulated from numerous decisions, a nuisance will embrace everything that endangers life or health, offends the human senses, transgresses laws of decency, or obstructs, impairs, or destroys the reasonable, peaceful, and comfortable use of property. Personal and property rights are guaranteed by the organic and statutory law of the land, but liberty, not license, in the use of these rights is the heritage of the American citizen, and coupled with the protection and conservation of rights of person and property is the mandate, to so use them as to not trample upon, disregard or destroy the rights of others." Trueheart v. Parker, Tex.Civ.App., 257 S.W. 640.

At the common law a public nuisance was defined as "anything that worketh hurt, inconvenience, or damage to the subjects of the Crown."

A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another; that produces damages to but one or a few persons and cannot be said to be public. 2 Bouvier's Law Dictionary, Rawle's Third Revision, page 2379.

The terms "nuisance" and "negligence" are not synonymous. Liability for negligence is based on want of proper care while one who creates or maintains certain types of nuisances may be liable for resulting injury regardless of the degree of care or skill exercised to avoid injury. The existence of a nuisance does not always depend upon the degree of care used but upon the degree of danger or damage existing even with the best of care. In the case of nuisances not created by negligence, ordinarily the question of care or want of care is not involved.

A nuisance may be, and often is, the consequence of negligence. Acts or omissions which constitute negligence may also give rise to a nuisance. See Olivas v. El Paso Elec. Co., Tex.Civ.App., 38 S.W.2d 165, and Olivas v. El Paso Elec. Co., Tex. Civ.App., 54 S.W.2d 154.

"As a general rule, proof of negligence is not essential to imposition of liability for the creation or maintenance of a nuisance. This is so although the nuisance complained of may be the consequence of negligence. A nuisance does not rest on the degree of care used, but on the degree of danger or annoyance existing even with the best of care. Consequently, if a nuisance exists, the fact that due care was exercised against its becoming a danger or annoyance is no excuse. However, where the act or condition in question can become a nuisance only by reason of the negligent manner in which it is performed or permitted, no right of recovery is shown independently of the existence of negligence." 31 Tex.Jur. § 11, p. 421.

See also Abilene & S. Ry. Co. v. Herman, Tex.Civ.App., 47 S.W.2d 915; 39 Am. Jur. § 24, p. 305.

A business which is lawful in itself may become a nuisance either because of the locality in which it is carried on or because it is conducted in an improper manner. 31 Tex.Jur. 424, § 13; 39 Am.Jur. 325, § 44.

In determining whether a business is a nuisance per accidens the fact that the business is a useful or necessary one or that it contributes to the welfare and prosperity of the community is not determinative, but when expensive plants have been erected and are used in carrying on a useful business adjacent property owners will not be permitted to maintain actions for every trifling annoyance which such business causes them. See City of Dallas v. Newberg, Tex.Civ.App., 116 S.W.2d 476. On the other hand the law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business. 39 Am.Jur. 327, § 45.

In determining whether a thing or a business is a nuisance the location and surroundings are important and should be considered with other circumstances of the case. A business or industry otherwise lawful may be a nuisance because of the place where it is located or carried on, and although it is not in itself a nuisance, it may become such when it is located in a place forbidden by law or wholly uncongenial to its type of enterprise. "A nuisance may be a right thing in the wrong place, like a pig in the parlor instead of the barnyard." Justice Sutherland in Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A.L.R. 1016. See Gose v. Coryell, 59 Tex.Civ. App. 504, 126 S.W. 1164.

The Appellee contends, and the Court below thought, that under recent decisions of the court of Texas no liability would follow for damages to the property of Plaintiffs caused by a lawful use of the property of the Defendant unless the Defendant had constructed or operated its plant in a negligent manner. The Appellee insists that the doctrine that the maintenance of a nuisance creates an absolute liability, as announced in the case of Fletcher v. Rylands, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 236, has been rejected in Texas except when an operation or business is a nuisance per se.

It is not necessary for us to consider nuisances per se because the business of the Defendant here was lawful and useful, and such a business will not be deemed a nuisance per se.

The sole question presented by this appeal is whether or not a landowner is without recourse for damages caused to his land by the non-negligent, purposeful, and permanent operation of a lawful business, which operation the owners knew when their plant was being constructed would continually damage the land of such owner.

Without doubt the Supreme Court of Texas has refused to follow the strict rule announced in Fletcher v. Rylands, supra, and has announced the rule, in...